[HOME]

NEW YORK DIVORCE AND FAMILY LAW 

[SITE MAP]

ARTICLES  BY SUBJECT

Adoption

Grandparent Visitation and Non-Parent Visitation

Grounds For Divorce

International Child Abduction

Legal Fee Awards and Awards For Expenses

Litigation and Procedure

Marital Property

Retirement Benefits

Separate Property

Spousal Support

Uniform Child Custody Jurisdiction and Enforcement Act

[HOME]

[SITE MAP]

[ Home | News | Feedback | Search ]

Custody : Jurisdiction Under The Uniform Child Custody Juristiction Act and The Parental Kidnapping Prevention Act

The Domestic Relations Law, in section 240, authorizes the court to determine custody or visitation in any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage.

Best Interest Rule: The court must give such direction, between the parties, for the custody as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child. There is o prima facie right to the custody of the child in either parent.

Jurisdiction: Jurisdiction of all custody determinations is governed by Article 75 of the Domestic Relations Law and the Federal Parental Kinapping Prevention Act.

75-c. Definitions

As used in this article, the following terms have the following meanings:

1. "Contestant" means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.

2. "Custody determination" means a court decision and court orders and instructions providing for the temporary or permanent custody of a child, including visitation rights.

3. "Custody proceeding" includes proceedings in which a custody determination is at issue or is one of several issues including any action or proceeding brought to annul a marriage or to declare the nullity of a void marriage, or for a separation, or for a divorce, but not including proceedings for adoption, child protective proceedings or proceedings for permanent termination of parental custody, or proceedings involving the guardianship and custody of neglected or dependent children, or proceedings initiated pursuant to section three hundred fifty-eight-a of the social services law.

4. "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.

5. "Home state" means the state in which the child at the time of the commencement of the custody proceeding, has resided with his parents, a parent, or a person acting as parent, for at least six consecutive months. In the case of a child less than six months old at the time of the commencement of the proceeding, home state means the state in which the child has resided with any of such persons for a majority of the time since birth.

6. "Initial decree" means the first custody decree concerning a particular child.

7. "Modification decree" means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court.

8. "Physical custody" means actual possession and control of a child.

9. "Person acting as parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.

10. "State" means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

75-d. Jurisdiction to make child custody determinations

1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree only when:

(a) this state (i) is the home state of the child at the time of commencement of the custody proceeding, or (ii) had been the child's home state within six months before commencement of such proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) it is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(c) the child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child; or

(d) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), (b), or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

2. Except under paragraphs (c) and (d) of subdivision one of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

3. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

75-e. Notice and opportunity to be heard

Before making a decree under this article, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside the state, notice and opportunity to be heard shall be given pursuant to section seventy-five-f of this article. Any person who is given notice and an opportunity to be heard pursuant to this section shall be deemed a party to the proceeding for all purposes under this article.

75-j. Pleadings and affidavits; duty to inform court. 1. Except as provided in subdivision four of this section, every party to a custody proceeding shall, in his first pleading or in an affidavit attached to that pleading, give information under oath as to the child's present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether he:

(a) has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;

(b) has information of any custody proceeding concerning the child pending in a court of this or any other state; and

(c) knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

2. If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court's jurisdiction and the disposition of the case.

3. If, during the pendency of a custody proceeding, any party learns of another custody proceeding concerning the child in this or another state, he shall immediately inform the court of this fact.

4. In an action for divorce or separation, or to annul a marriage or declare the nullity of a void marriage, where neither party is in default in appearance or pleading and the issue of custody is uncontested, the affidavit required by this section need not be submitted. In any other such action, such affidavit shall be submitted by the parties within twenty days after joinder of issue on the question of custody, or at the time application for a default judgment is made.

Required Affidavit: Except in an action for divorce or separation, or to annul a marriage or declare the nullity of a void marriage, where neither party is in default in appearance or pleading and the issue of custody is uncontested, every party to a custody proceeding must, in his or her first pleading or in an affidavit attached to that pleading, give information under oath as to the child's present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether he:

(a) has participated as a party, witness, or in any other capacity in any other litigation concerning the custody of the same child in this or any other state;

(b) has information of any custody proceeding concerning the child pending in a court of this or any other state; and

(c) knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

The affidavit must be submitted by the parties within twenty days after joinder of issue on the question of custody, or at the time application for a default judgment is made.

The Parental Kidnapping Prevention Act (PKPA)28 USCS $ 1738A. restricts the right of a court of a state to exercise jurisdiction by way of modifying a child custody determination of a court of another state. This statute should also be consulted where such a question arises.

The Act provides that, where the court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with the Act or has declined to assume jurisdiction to modify the decree and that the court of this state has jurisdiction.Thus, where it is clear that another state has personal jurisdiction, has made a determination of custody and is continuing to exercise such jurisdiction, a court of this state cannot modify a custody decree of such other state.

And, a court of this state is without jurisdiction to modify a judgment of divorce of another state, as to visitation, where the rendering court has retained jurisdiction of the cause and there is no indication that it would decline to assume jurisdiction to modify the judgment.

Where there exists a custody decree by a court of another state, when a custody proceeding is commenced in this state the threshold inquiry is twofold. First it must be determined whether the sister-state court had jurisdiction to render the custody decree and second, whether at the time the proceeding is commenced in this state, the sister-state court would have jurisdiction to modify its degree.

The text of the Act (Pub L No 96-611 $$6-10, 94 Stat 2568, amending Title XVIII of the Social Security Act), which was signed by the President on December 28, 1980, is as follows:

Parental Kidnapping Prevention Act of 1980.

Findings and Purposes.

7.(a) The Congress finds that

(1) there is a large and growing number of cases annually involving disputes between persons claiming rights of custody and visitation of children under the laws, and in the courts, of different States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States; (2) the laws and practices by which the courts of those jurisdictions determine their jurisdiction to decide such disputes, and the effect to be given the decisions of such disputes by the courts of other jurisdictions, are often inconsistent and conflicting; (3) those characteristics of the law and practice in such cases, along with the limits imposed by a Federal system on the authority of each such jurisdiction to conduct investigations and take other actions outside its own boundaries, contribute to a tendency of parties involved in such disputes to frequently resort to the seizure, restraint, concealment, and interstate transportation of children, the disregard of court orders, excessive relitigation of cases, obtaining of conflicting orders by the courts of various jurisdictions, and interstate travel and communication that is so expensive and time consuming as to disrupt their occupations and commercial activities; and (4) among the results of those conditions and activities are the failure of the courts of such jurisdiction to give full faith and credit to the judicial proceedings of the other jurisdictions, the deprivation of rights of liberty and property without due process of law, burdens on commerce among such jurisdictions and with foreign nations, and harm to the welfare of children and their parents and other custodians.

(b) For those reasons it is necessary to establish a national system for locating parents and children who travel from one such jurisdiction to another and are concealed in connection with such disputes, and to establish national standards under which the courts of such jurisdictions will determine their jurisdiction to decide such disputes and the effect to be given by each such jurisdiction to such decisions by the courts of other such jurisdictions.

(c) The general purposes of sections 6 to 10 of this Act are to(1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child; (2) promote and expand the exchange of information and other forms of mutual assistance between States which are concerned with the same child; (3) facilitate the enforcement of custody and visitation decrees of sister States; (4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; and (6) deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.

Full Faith and Credit Given to Child Custody Determinations.

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

(b) As used in this section, the term(1) 'child' means a person under the age of eighteen; (2) 'contestant' means a person, including a parent, who claims a right to custody or visitation of a child; (3) 'custody determination' means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications; (4) 'home State' means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any such persons are counted as part of the six-month or other period; (5) 'modification' and 'modify' refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not; (6) person acting as a parent' means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; (7) 'physical custody' means actual possession and control of a child; and (8) 'State' means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if--(1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; (B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse; (D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if$e(1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination."

8.(a) Chapter 115 of title 28, United States Code, is amended by adding immediately after $ 1738 the following new section: $ 1738A. Full faith and credit given to child custody determinations.

8(b) The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to $ 1738 the following new item: "1738A. Full faith and credit given to child custody determination."

8(c) In furtherance of the purposes of $ 1738A of title 28, United States Code, as added by subsection (a) of this section, State courts are encouraged to--(1) afford priority to proceedings for custody determinations; and (2) award to the person entitled to custody or visitation pursuant to a custody termination which is consistent with the provisions of such $ 1738A, necessary travel expenses, attorneys' fees, costs of private investigations, witness fees or expenses, and other expenses incurred in connection with such custody determination in any case in which$e(A) a contestant has, without the consent of the person entitled to custody or visitation pursuant to a custody determination which is consistent with the provisions of such $ 1738A, (i) wrongfully removed the child from the physical custody of such person, or (ii) wrongfully retained the child after a visit or other temporary relinquishment of physical custody; or (B) the court determines it is appropriate.